Venezuela’s refusal to participate at the ICJ

The Foreign Ministry could hardly have been surprised when on Monday, June 18, Venezuela made it known that it did not intend to participate in proceedings brought by Guyana in the International Court of Justice with regard to Caracas’s claim that the 1899 settlement of the border between the two countries was null and void.

Statements emanating from Miraflores from the time then United Nations Secretary General Ban Ki-moon first recommended that the matter should be referred to the ICJ if, after a year the Good Offices process produced no results, and then when his successor Antonio Guterres acted on that recommendation, had elicited distinctly adverse responses from our western neighbour.

As we reported last week, the Venezuelan Foreign Ministry in its communiqué concerning its letter to the court, said that the action had been unilaterally filed by Guyana “without Venezuela’s consent”. It went on to say that its decision was consistent with its historical position of not recognizing the jurisdiction of the international body, particularly as it relates to the border controversy. It might be mentioned that Caracas has refrained from submitting matters in which it is involved to multilateral institutions in general for resolution; it has always favoured bilateral agreements.

It might be added that this applies as well to the UN Convention on the Law of the Sea, which Venezuela has declined to sign, preferring instead separate negotiations with the various islands of the Caribbean. One of these is a maritime treaty concluded with Trinidad and Tobago in 1990.

That said, the people of Guyana have been assured both by Foreign Minister Carl Greenidge, and prior to that by Sir Shridath Ramphal that the consent of both parties is not required for the World Court to make a ruling in this case, in addition to which the decision would be legally binding, whether or not Venezuela participates in the proceedings.

As for the decision of the Secretary General to refer the controversy in the first instance to The Hague, there is nothing in the Geneva Agreement which requires him to obtain the consent of the two sides. For its part, Venezuela’s wish is again to offer bilateral negotiations, “… to reach a settlement which may be practical and satisfactory for both parties as intended by the 1966 Geneva Agreement.”

It is perhaps worth repeating that this is not about the actual boundary which divides Guyana and Venezuela; it is about the fact that our neighbour to the west has caused a controversy by claiming that the settlement of that boundary was the consequence of a political “deal” at the time an arbitral tribunal determined it in 1899. That the decision was a corrupt one is complete nonsense, of course. Venezuela agreed with the border for many decades, taking part in marking it on the ground between 1901 and 1905, and joining with Brazil and Britain (British Guiana) to agree to and mark the trijunction point on Mt. Roraima in 1932.

The Venezuelan claims were first raised in the United Nations in 1962, in circumstances where Guyana was on the verge of gaining independence, and in an atmosphere where cold war considerations trumped all others. The Venezuelans hitched their claims on the very tenuous accounts of a lawyer, who had been a junior counsel on the legal team representing Venezuela in 1899. At the time of making them, he was the only one still alive who had been involved in the tribunal. Furthermore, he did not make them public when he was still living either; they were left with his law partner to do as he sought fit after he died, and it was the partner who published them. Mr. Mallet-Prevost – for that was his name – was safely beyond earthly interrogation by that time, and while the Venezuelans have founded their claims on his stories, they have never put up any cogent defence of his strange assertions.

To cut a long story short, with Venezuela not retreating from its avowals where our territory was concerned, Britain convened a meeting in Geneva involving Venezuela and British Guiana, the latter of whom was to become a full signatory on Independence. Britain seemingly wanted to commit Venezuela to something which would avoid an invasion by that country and seizure of territory. What eventuated was the Geneva Agreement – an international treaty. Article 1, for example, states: “A Mixed Commission shall be established with the task of seeking satisfactory solutions for the practical settlement of the controversy between Venezuela and the United Kingdom which has arisen as the result of the Venezuelan contention that the Arbitral Award of 1899 about the frontier between British Guiana and Venezuela is null and void.”

There is nothing there about the substantive frontier, simply about our western neighbour’s “contention” that the award is null and void.

However, Venezuela insists on misreading Geneva, to asseverate that the treaty recognises Venezuela’s territorial claim. The Mixed Commission, it might be noted, failed, and under the provisions of the agreement, the resolution of the controversy in its ultimate stage goes to the Secretary General of the UN, who “shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.” Here again, as said above, the decision about means is simply left in the hands of the Secretary General.

It is not altogether too surprising that Caracas is not happy with Geneva and makes a habit of misinterpreting some clear language, while at the same time insisting that Venezuela accepts the validity of the agreement. Bilateral talks, as previously mentioned, are that government’s preferred mode of procedure; we had the Good Offices process for decades, and it produced no results – but then from Miraflores’ perspective it wasn’t supposed to. Clearly, this country could not go on indefinitely being the victim of economic sabotage, military occupation (Ankoko), illegitimate decrees claiming Guyana’s waters and a host of other hostile acts on the part of Venezuela; and this country’s application to the World Court holds out hope that this model of relations will change.

Venezuela, of course, is going through some very difficult times at the moment, and given too that generations of its people have been brought up to believe they have some inalienable right to land neither they nor their forefathers ever lived in or worked, it is perhaps not surprising that the government in Caracas is not overly anxious to seek a ruling at the ICJ.

President Maduro has told the Venezuelan people that they will continue to defend the “sovereign rights” over Essequibo, and one can only hope that if the World Court does take the case, Miraflores will do all it can to persuade the population to accept the result.